USA v. Merchant

Filing 920060323

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 23, 2006 Charles R. Fulbruge III Clerk No. 03-21007 Summary Calendar

UNITED STATES OF AMERICA Plaintiff - Appellee v. KYLE MERCHANT Defendant - Appellant -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:02-CR-368-3 -------------------Before KING, WIENER and DeMOSS, Circuit Judges. PER CURIAM:* Kyle Merchant appeals his guilty-plea conviction of aiding and abetting in the possession with intent to distribute 50 or more grams of cocaine base. He seeks to challenge his sentence

based on United States v. Booker, 543 U.S. 220 (2005). Merchant asserts that the merits of his appeal should be addressed despite an appeal waiver in his plea agreement. argues that the appeal waiver, which was entered before the Supreme Court issued its decision in Booker, was not informed and He

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

No. 03-21007 -2voluntary because the waiver was based on the erroneous advice that the Sentencing Guidelines were mandatory and that the district court was required to issue a sentence in conformity with those Guidelines. This argument is unavailing. See United

States v. Burns, 433 F.3d 442, 450-51 (5th Cir. 2005). Merchant's appeal waiver is enforceable. As part of his plea agreement, Merchant waived his right to appeal on any ground set forth in 18 U.S.C. § 3742, with the exception of an upward departure. constitute an upward departure. Merchant's sentence did not See United States v. McKinney, Accordingly, we dismiss

406 F.3d 744, 746-47 (5th Cir. 2005).

Merchant's appeal because it is barred by the waiver contained in the plea agreement. APPEAL DISMISSED.